1. This is a suit for the recovery of Rs. 40,000/-, as compensation, on account of the death of Mrs. Shashi Prabha. The suit, which was filed in forma pauperis, is based on the following allegations:—

2. On the 18th August, 1962, at about 1.30 p.m, defendant No. 1 had taken Shashi Prabha, the mother of the plaintiffs, and wife of defendant No. 3, in a motor car, which was insured with defendant No. 2, to Meerut. On the way, defendant No. 1 had driven the car recklessly and negligently as a result of which it had turned turtle at about 5 miles from Meerut and Mrs. Shashi Prabha had received grievous crush injuries and had died within an hour. Defendant No. 1 had caused the death of Mrs. Shashi Prabha by his rash, negligent and reckless driving and was liable to pay compensation to the plaintiffs for causing the death of their mother. Mrs. Shashi Prabha was only 30 years old. She enjoyed a very good health. The plaintiffs were dependant on her for their proper upbringing and she also looked after the entire household and rendered all sorts of services to the plaintiffs. After the death of their mother, a servant was engaged for looking after the plaintiffs by their father. The studies of the plaintiffs had been adversely affected. Although the plaintiffs had suffered untold loss, yet they claimed only a sum of Rs. 40,000/- with interest at 6 per cent per annum from the date of the death till realisation, as compensation. The car was insured with defendant No. 2. In terms of the provisions of Chapter VIII of the Motor Vehicles Act, 1939, defendant No. 2 is also liable to pay compensation. Defendant No. 3, the father of the plaintiffs, is also entitled to claim compensation but he has declined to join with the plaintiffs. Defendants Nos. 1 and 2 have refused to pay compensation, despite demands. The Motor Accident Claims Tribunal has not yet been constituted in U.P, the civil court has, therefore, jurisdiction to try the suit.

3. The suit has been contested by defendants Nos. 1 and 2. In separate written statements, the defendants denied that the plaintiffs are paupers. The defendants pleaded that the suit had been instituted by the plaintiffs in collusion with defendant No. 3, their father, who possessed considerable movable and immovable properties, and had put forward the plaintiffs to avoid the payment of court fee. The defendants, further pleaded that Delhi courts have no jurisdiction to try the suit. The learned Subordinated Judge, in whose court the suit had been instituted, framed the following two issues:—

1. Whether the petitioners are paupers? (O.P.P)

2. Whether the Civil Court has no-jurisdiction to entertain his application? (O.P.D).

4. By his order, dated the 16th August, 1963, the learned Subordinale Judge, decided both the issues against the defendants. He held that the plaintiffs were paupers and that the civil court at Delhi had jurisdiction to try the suit.

5. Defendants Nos. 1 and 2, thereupon, filed separate written statements, on merits of the case. Except the pleas about the liability of defendant No. 2, the other pleas of defendants Nos. 1 and 2 are substantially the same. They admitted that Mrs. Shashi Prabha had died in a motor accident. But they denied that the accident was due to any negligent or rash act of defendant No. 1. The defendants further denied that the plaintiffs had suffered any loss or were entitled to any compensation. The defendants pleaded that Mrs. Shashi Prabha was not earning anything and the plaintiffs were, therefore, not entitled to claim any compensation because of her death. It was also pleaded that the suit was not maintainable in law, as it was not filed in accordance with the provisions of the Fatal Accident Act. The defendants admitted that no Motor Accidents Claims Tribunal was established in U.P The case of defendant No. 1 is as under:

6. Defendant No. 1 is a friend of the brother of Mrs. Shashi Prabha and for that reason, was well known to her, her husband and her sister, Mrs. Kamla. On the day of the accident, defendant No. 1 happened to be passing in his car by the Willingdon Hospital, New Delhi when he saw Mrs. Shashi Prabha raising her hand to stop his car near a bus stop. Defendant No. 1 stopped the car. Mrs. Shashi Prabha enquired of Defendant No. 1 where he was going. Defendant No. 1 informed her that he was on his way to Meerut. Mrs. Shashi Prabha told defendant No. 1 that she and her sister, Kamla, were waiting for a bus to go to Ajmere Gate to board a bus for Meerut and that they would be very happy if defendant No. 1 could give them a lift in his car. Defendant No. 1 agreed. Mrs. Shashi Prabha, her child and her sister Kamla sat in the car. Defendant No. 1 drove the car to Meerut. It was still five miles to Meerut that the car skidded and fell into a ditch. Mrs. Shashi Prabha was thrown out of the car and sustained injuries as a result of which she died in the hospital.

7. According to defendant No. 1, if the plaintiffs were to be allowed any compensation, the liability to pay compensation was of defendant No. 2, with which the car was comprehensively insured. The plea of defendant No. 2 was that they were not liable to pay compensation for the death of Mrs. Shashi Prabha who was travelling in the car gratuitously.

8. The plaintiffs filed replications to the written statements.

9. On the pleadings of the parties, the learned Subordinate Judge struck the following issues on merits:—

1. Whether the accident in question occurred due to the rash and negligent driving of Mr. D.C Kapur, defendant No. 1? (O.P.Ps)

2. To what amount, if any, are the plaintiffs entitled on account of damages and from whom? (O.P.Ps)

3. Whether the suit has been filed in collusion with defendant No. 3. If so, what is its effect? (O.P.Ds)

4. Relief.

10. The parties have led evidence on the issues. On the establishment of the High Court of Delhi, the case was transferred to it, as the value of the suit exceeded Rs. 25,000/-.

11. The issues struck are decided as under:—

Issue No. 1

12. The admitted facts of the case are that defendant No. 1 had taken Mrs. Shashi Prabha and her sister Kamla in his car to Meerut, that it had rained and was drizzling at the time when the accident had occurred, that when the car was five miles from Meerut, it had skidded and had fallen into a ditch and Mrs. Shashi Prabha was thrown out of the car and had sustained injuries as a result of which she died in the hospital after one hour. It is not material whether Mrs. Shashi Prabha had requested defendant No. 1 to give her a lift, as alleged by defendant No. 1 or she and her sister had been taken from their house by defendant No. 1, as alleged by the plaintiff. The material fact is that Mrs. Shashi Prabha and her sister were in the car which was being driven by Defendant No. 1 on Delhi-Meerut road and that the car had skidded. This material fact is admitted.

13. The question, which requires decision on the above admitted facts, is whether the death of Mrs. Shashi Prabha was due to any rash or negligent act of defendant No. 1. The contention, on behalf of the plaintiffs, is that the skidding of the car was due to the rash and negligent driving of defendant No. 1, who had driven the car at a high speed of 40-50 miles per hour on a road which had become wet and slippery on account of heavy rains and the drizzle at the time of accident. There is no evidence that the road was slippery. Sri Niwas, P.W 1, and Brijinder Nath, P.W 2, have stated that defendant No. 1 was driving the car at a rash speed of about 40-50 miles per hour. Defendant No. 1 had stated that he was driving the car at the speed of 35-40 miles per hour. Shri Niwas, P.W 1, and Brijinder Nath, P.W 2 appear to be chance witnesses. Shri Niwas, P.W 1, is a friend of the father of the plaintiffs and, therefore, an interested witness. The statement of Shri Niwas, P.W 1, and Brijinder Nath, P.W 2, that defendant No. 1 was driving the car at a speed of 50 miles per hour is not worthy of credit.

14. Defendant No. 1 admits that he was driving at the speed of 35-40 miles per hour. The road was no doubt wet but it was not slippery. Defendant No. 1 has stated, on oath, that he is holding driving licence and is driving cars since 1944. Defendant No. 1 is an experienced driver. There is no evidence that there was any rush of traffic at the relevant time. The speed of 35-40 miles per hour on the highway from Delhi to Meerut cannot be considered rash in the circumstances of the case. There is no evidence that defendant No. 1 was in any way negligent in driving the car. The skidding of the car was not due to any negligent or rash act of defendant No. 1. He is not liable for the death of Mrs. Shashi Prabha.

15. The authorities cited by the learned counsel for the plaintiffs are not at all applicable to the facts of the present case. In Municipal Corporation Of Delhi v. Subhagwanti & Others . 1966 A.C.J 57., the facts were that the Clock Tower Chandni Chowk, Delhi, was exclusively under the ownership and control of the Municipal Corporation or its servants. The Clock Tower was 80 years old and the normal life of the structure of the top storey of the building, having regard to the kind of mortar used, could be only 40 or 45 years. The Chief Engineer had stated that the collapse was due to thrust of the arches on the top portion and the mortar had deteriorated to such an extent that it had been reduced to powder without any cementing properties. It was not the case of the Corporation that there was any earthquake or storm or any other natural event which was unforeseen and which could have been the cause of the fall of the Clock Tower. In the above circumstances, the doctrine of res ipsa loquitur was applied against the Municipal Corporation. In the present case, there are absolutely no circumstances, which may justify the application of that doctrine.

16. In Laurie v. Raglan Building Company Ltd. . 1942 1 K.B 152. skidding was held due to the negligence of the driver as he had driven a heavy lorry on a road on which snow had frozen and the surface of the road was like glass. In the present case, the only evidence is that the car had skidded. There is nothing on the record to show that the car had skidded due to the negligence of defendant No. 1. As was observed in the case cited, the skid, I by itself is neutral. It may or may not be due to negligence.

17. The conclusion, from the above discussion, is that the plaintiffs have failed to prove that the accident was due to the negligence or rashness of defendant No. 1. The issue is held against the plaintiffs.

Issue No. 2

18. Assuming for the sake of argument, that defendant No. 1 was responsible for causing the death of Mrs. Shashi Prabha by his rash or negligent act, and the plaintiffs, are entitled to claim compensation, there is no satisfactory material on record to determine the quantum of compensation. The plaintiffs claim compensation on account of loss of services and company. According to the plaintiffs, a servant at a salary of Rs. 40/- P.M and a tutor had to be engaged for the plaintiffs to look after them and their studies. The plaintiffs have not produced any servant nor any tutor, neither any receipt of the servant nor the tutor has been produced. Chander Mohan, plaintiff, was admittedly employed at Bombay at the time of the death of Mrs. Shashi Prabha at a salary of Rs. 200/-. He had not suffered any loss regarding services and company on account of the death of Mrs. Shashi Prabha. Chander Mohan, plaintiff, is not entitled to any compensation. Mohinder Pratap, plaintiff, was sixteen years old and Devinder Singh, plaintiff, was 12 years old at the time of the death of Mrs. Shashi Prabha. Normally Mrs. Shashi Prabha would have looked after them till they had attained majority. Mohinder Pratap and Devinder Singh had lost services and company of their mother. They have not led evidence about the quantum of compensation. Mohinder Partap and Devinder Singh are awarded respectively Rs. 500/- and Rs. 2,000/- as general damages.

19. The next question is who is liable to pay damages. Prime facie, defendant No. 1, who is assumed to be responsible for the death of Mrs. Shashi Prabha, would be liable to pay damages. The contention, on behalf of defendant No. 1, is that the car involved in the accident was insured with defendant No. 1, under a comprehensive policy of insurance, against third party risk and that defendant No. 2 is liable to pay compensation which may be awarded to the plaintiffs under the terms and conditions of the insurance policy and the provisions of the Motor Vehicles Act. The term of the insurance policy, Ex. D. 2W1.A relied upon reads:—

“The Company will indemnify the Insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimant's costs and expenses which the Insured shall become legally liable to pay in respect of

(a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the emyloyment of such person by the Insured.”

20. The provisions of the Motor Vehicles Act relied upon are the sections 96(1) and 95(1). Section 96(1) reads:—

“If, after a certificate of insurance has been issued under sub-section (4) of section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 95 (being liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.”

21. The relevant portion of section 95(1) reads:—

“(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—

(a) is issued by a person who is an authorised insurer or by a co-operative. … … … … … and

(b) insures the person or classes of persons-specified in the policy to the extent specified in subjection (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required—

(i) …………

(ii) …………

(b) …………

(c) …………

(ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises.”

22. The implication of the aforesaid provisions of the Motor Vehicles Act was considered in K.N.P Patel v. K.L Kesar. It was observed:—

“Section 96(1) shows that the obligation of an insurer to pay the amount for which the judgment has been passed is subject to certain conditions and qualifications. The first condition of the obligation of the insurer is that there is a judgment. The second condition is that the judgment must be in respect of any liability which is required to be covered by a policy under clause (b) of sub-section (1) of section 95. The third condition is that the liability is in fact covered by the terms of the policy.”

23. It was, further, observed that insurance policy is not required to cover liability of the death of a person, being carried in a car not plying for hire or reward.

24. The interpretation of the above provisions wa considered by a Full Bench of the Punjab and Haryana High Court, in Oriental Fire and General Insurance Co., Ltd. v. Gurdev Kaur. It was said:—

“It is clear from the very terms of sub-section (1) of section 96 that the liability of the insured to pay to the person entitled to the benefit of any decree of the Tribunal is in regard to judgment in respect of such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 95, which clause is subject to the two provisos (i) and (ii) in sub-section (1) of the section. Apparently, if the liability is not covered by clause (b) of sub-section (1) of section 95, the question of any payment by the insurers pursuant to any judgment by the Tribunal does not arise. Sub-section (2) of section 96 refers to a sum payable by an insurer under sub-section (1) of that section, and sub-section (6) of the section debars any other defence than those mentioned in sub-section (2). But this only happens when the judgment is in respect of liability as is required to “be covered by a policy under clause (b) of the sub-section (1) of section 95. Where no liability is required to be covered by that provision, it is obviously open to the insurer to prove that in a particular case the liability is not required to be covered by that provision, and, when the insurer shows that, it has no liability to pay to the person who is entitled to the benefit of the decree and judgment of the Tribunal. In such a case the question of the other defences under Sub-section (2) of section 96 never arises.”

25. In the present case, defendant No. 1, the owner of the car, was not required to have a policy covering the liability arising out of the death of Mrs. Shashi Prabha, who was travelling in the car. Condition No. 2, laid down in 1966 A.C.J 284, was not satisfied in the present case. Defendant No. 2 cannot be made to pay compensation to the plaintiffs under section 96, Motor Vehicles Act, in the present suit. Judgment can be passed against defendant No. 1 only. The issue is decided as above.

Issue No. 3.

26. There is absolutely no evidence on record that the suit has been filed in collusion with defendant No. 3. The issue is held against defendants Nos. 1 and 2.

Issue No. 4.

27. In view of the finding on issue No. 1, the suit of the plaintiffs is dismissed with costs. The plaintiffs will pay court fee leviable on the plaint.

28. Suit dismissed.